In the Matter of Certain Biometric Scanning Devices, Components Thereof, Associated Software, and Products Containing the Same; Notice of Commission Decision To Review-in-Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions Regarding the Issues Under Review and Remedy, Bonding, and the Public Interest, 52970-52971 [2011-21586]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 76, Number 164 (Wednesday, August 24, 2011)]
[Notices]
[Pages 52970-52971]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21586]



[[Page 52970]]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-720]


In the Matter of Certain Biometric Scanning Devices, Components 
Thereof, Associated Software, and Products Containing the Same; Notice 
of Commission Decision To Review-in-Part a Final Initial Determination 
Finding a Violation of Section 337; Request for Written Submissions 
Regarding the Issues Under Review and Remedy, Bonding, and the Public 
Interest

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review-in-part a final initial 
determination (``ID'') of the presiding administrative law judge 
(``ALJ'') finding a violation of section 337 in the above-captioned 
investigation, and is requesting written submissions regarding the 
issues under review and remedy, bonding, and the public interest.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-2310. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server at 
https://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. Hearing-impaired persons are advised that information 
on this matter can be obtained by contacting the Commission's TDD 
terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on June 17, 2010 based on a complaint filed on May 11, 2010, by Cross 
Match Technologies, Inc. (``Cross Match'') of Palm Beach Gardens, 
Florida. 75 FR 34482-83. The complaint, as amended on May 26, 2010, 
alleges violations of section 337 of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1337, in the importation into the United States, the 
sale for importation, and the sale within the United States after 
importation of certain biometric scanning devices, components thereof, 
associated software, and products containing the same by reason of 
infringement of certain claims of U.S. Patent Nos. 5,900,993 (``the 
'993 patent''); 7,203,344 (``the '344 patent''); 7,277,562 (``the '562 
patent''); and 6,483,932 (``the '932 patent''). The complaint further 
alleges that an industry in the United States exists as required by 
subsection (a)(2) of section 337, and names two respondents, Suprema, 
Inc. (``Suprema'') of Korea and Mentalix, Inc. of Plano, Texas.
    On November 10, 2010, the Commission issued notice of its 
determination not to review the ALJ's ID granting Cross Match's motion 
to amend the complaint by adding allegations of infringement as to 
claims 5-6, 12, and 30 of the '562 patent, and claims 7, 15, 19, and 45 
of the '344 patent. On December 27, 2010, the Commission issued notice 
of its determination not to review the ALJ's ID granting Cross Match's 
motion to terminate the investigation as to claims 6-8, 13-15, and 19-
21 of the '932 patent (eliminating this patent from the investigation); 
claims 13 and 16 of the '993 patent; claims 4, 15, 30, 32, and 44 of 
the `344 patent; and claim 2 of the '562 patent based on withdrawal of 
these claims from the complaint. On March 18, 2011, the Commission 
issued notice of its determination not to review the ALJ's ID granting 
Cross Match's motion for summary determination that it satisfies the 
economic prong of the domestic industry requirement.
    On June 17, 2011, the ALJ issued his final ID finding a violation 
of section 337 by Suprema by reason of infringement of one or more of 
claims 10, 12, and 15 of the '993 patent. The ALJ also found a 
violation of section 337 by reason of infringement of claim 19 of the 
'344 patent. The ALJ found no violation of section 337 with respect to 
the '932 patent. He also issued his recommendation on remedy and 
bonding during the period of Presidential review. On July 5, 2011, 
Cross Match, respondents, and the Commission investigative attorney 
(``IA'') each filed a petition for review of the final ID; and on July 
13, 2011, each filed a response to the other party's opposing petition.
    Upon considering the parties' filings, the Commission has 
determined to review-in-part the ID. Specifically, the Commission has 
determined to review the ALJ's finding of a violation of section 337 
based on infringement of claim 19 of the '344 patent. The Commission 
has determined not to review the remainder of the ID.
    On review, with respect to violation, the parties are requested to 
submit briefing limited to the following issues:
    (1) Who infringes claim 19 of the '344 patent and what type of 
infringement has occurred? Please consider direct, contributory, and 
induced infringement.
    (2) Is there is a sufficient nexus between the infringer's unfair 
acts and importation to find a violation of section 337? See, e.g., 
Dynamic Random Access Memories, Components Thereof and Products 
Containing Same, Inv. No. 337-TA-242, Comm'n Op. (Sept. 21, 1987); 
Certain Cardiac Pacemakers and Components Thereof, Inv. No. 337-TA-162, 
1984 WL 273827, Order No. 37 (March 21, 1984).
    In addressing these issues, the parties are requested to make 
specific reference to the evidentiary record and to cite relevant 
authority.
    In connection with the final disposition of this investigation, the 
Commission may issue an order that results in the exclusion of the 
subject articles from entry into the United States. Accordingly, the 
Commission is interested in receiving written submissions that address 
the form of remedy, if any, that should be ordered. If a party seeks 
exclusion of an article from entry into the United States for purposes 
other than entry for consumption, the party should so indicate and 
provide information establishing that activities involving other types 
of entry either are adversely affecting it or likely to do so. For 
background, see In the Matter of Certain Devices for Connecting 
Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 
(December 1994) (Commission Opinion).
    When the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or cease and desist orders would have on (1) the 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S. production of articles that are like or directly 
competitive with those that are subject to investigation, and (4) U.S. 
consumers. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    When the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action.

[[Page 52971]]

See section 337(j), 19 U.S.C. 1337(j) and the Presidential Memorandum 
of July 21, 2005. 70 FR. 43251 (July 26, 2005). During this period, the 
subject articles would be entitled to enter the United States under 
bond, in an amount determined by the Commission. The Commission is 
therefore interested in receiving submissions concerning the amount of 
the bond that should be imposed if a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues under review that 
specifically address the Commission's questions set forth in this 
notice. The submissions should be concise and thoroughly referenced to 
the record in this investigation. Parties to the investigation, 
interested government agencies, and any other interested parties are 
encouraged to file written submissions on the issues of remedy, the 
public interest, and bonding, and such submissions should address the 
recommended determination by the ALJ on remedy and bonding. The 
complainant and the IA are also requested to submit proposed remedial 
orders for the Commission's consideration. Complainant is also 
requested to state the dates that the patents at issue expire and the 
HTSUS numbers under which the accused articles are imported. The 
written submissions and proposed remedial orders must be filed no later 
than close of business on August 30, 2011. Reply submissions must be 
filed no later than the close of business on September 8. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
to the Commission in confidence must request confidential treatment 
unless the information has already been granted such treatment during 
the proceedings. All such requests should be directed to the Secretary 
of the Commission and must include a full statement of the reasons why 
the Commission should grant such treatment. See 19 CFR 210.6. Documents 
for which confidential treatment by the Commission is sought will be 
treated accordingly. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and 
in sections 210.42-46 of the Commission's Rules of Practice and 
Procedure, 19 CFR 210.42-46.

    By order of the Commission.

    Issued: August 18, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011-21586 Filed 8-23-11; 8:45 am]
BILLING CODE 7020-02-P